Did Obama's Interior hobble the Endangered Species Act?

A new policy sets the law back a half-century, conservationists say.

The cactus ferruginous pygmy-owl lives in the desert scrub and mesquite woodlands of central and southern Arizona, Texas and Mexico. It is a small bird with swaths of cream-colored feathers, measuring about seven inches long and weighing a little more than two ounces. It eats insects, rodents and lizards, some of them as big as the owls themselves. It nests in the holes woodpeckers leave in saguaro and other cacti and trees.

And it has now become an emblem in a fight over the meaning of a five-word phrase that has dogged the 1973 Endangered Species Act the way “waters of the United States” has muddied the Clean Water Act. If a species, like the pygmy-owl, is at risk of being lost in “a significant portion of its range,” does it merit protection even if the same species is holding on elsewhere? Or do the inhabitants of that “significant portion” need to be crucial to the entire species’ survival?

Those are the questions the U.S. Fish and Wildlife and the National Marine Fisheries’ Service, sought to address on June 27, when they announced a new policy to provide “consistency in the application of that phrase” as it applies to endangered or threatened species. Under the new policy, a species on the decline in "a significant portion of its range" can be listed as threatened or endangered only if that portion is crucial to the survival of the species' entire global population.

In other words, if the cactus ferruginous pygmy-owl will persist even after the species disappears from, for instance, the northern Sonoran Desert, the bird doesn't warrant protection.

It is not the clarification conservationists wanted. If the interpretation sticks, some say, the 1973 law will have fundamentally changed — reverted, in fact, to the 1966 Endangered Species Preservation Act that the 1973 law was written to improve.

“The 1966 law was deemed inadequate in part because scientists pointed out that actions taken only to prevent the complete extinction of a species were likely not to (work),” says Michael Paul Nelson, a professor and environmental ethicist at Oregon State University. “It defined 'endangered species' merely as 'species at risk of extinction.'”

The phrase “significant portion of its range” allowed wildlife agencies to list a species whose numbers were diminishing in the U.S., even if global populations were stable.

In a recent New York Times editorial, Nelson and Michigan Technological University Ecologist John Vucetich argued that the new policy threatens to reduce the act to “a mechanism that merely preserves representatives of a species, like curating rare pieces in a museum.”

The bald eagle might never have merited protection were the policy in effect back in the 1970s; while hunting and DDT were decimating it, it still thrived in Alaska and Canada. The gray wolf wouldn't have been listed, either. The new interpretation of those five words has already been used in the process of delisting the wolf and to deny protection to the wolverine. And it has already contributed to the delisting of the cactus ferruginous pygmy-owl.

The cactus ferruginous pygmy-owl’s disappearance from parts of its northern range toward the end of the 20th century wasn’t a mystery: Development had surged in the northern Sonoran Desert. In 1997, when the U.S. Fish and Wildlife Service listed the bird as endangered, developers were livid.

“The bird's listing is ‘dishonest,’” Alan Lurie, executive director of the Southern Arizona Homebuilders' Association, told Tony Davis, who reported on it for this magazine. "Experts tell me the bird is prolific in Mexico (so) it is not truly endangered."

Lurie was partially right: The pygmy-owl was first listed on the grounds that it was a “distinct population segment” from the pygmy-owls on the Mexican side of the border, which it technically wasn't. Developers sued, and in 2006 the pygmy-owl’s listing was overturned.

And yet the owl was clearly endangered in the northern Sonoran Desert. So the Center for Biological Diversity petitioned again for the bird’s protection, arguing this time that it was “in danger of extinction throughout all or a significant portion of its range.”

At first Fish and Wildlife agreed. "They actually drafted a proposed rule to list them, arguing for various reasons that we were right," says Noah Greenwald, endangered species director for the organization in Portland, Oregon. In that draft, which the Center for Biological Diversity obtained under the Freedom of Information Act, “the Sonoran Desert Ecoregion” was deemed “significant,” and the listing of the pygmy-owl within it was warranted.

Then something changed. “Two years later, they looked at that draft policy and said ‘Nope, you’re not right. Even if (the pygmy-owl) were lost in the Sonoran Desert, the species as a whole would be okay.’” A new draft in 2011 claimed that the Sonoran Desert pygmy-owl’s “contribution to the viability of the species” wasn't important enough to list it. The petition was denied.

It was the exact — and to Greenwald and Nelson, deeply flawed — interpretation Interior had been pushing for since 2000; the exact interpretation that had already been struck down by the Ninth Circuit in a case involving the flat-tailed horned lizard in 2001.

And it was the exact interpretation many conservationists were hoping the Obama administration would overturn, not support, in its clarification. “The policy itself is a political decision to try and limit the scope of the ESA,” Greenwald says. His organization will likely sue again, on behalf of the pygmy-owl.

Michael Paul Nelson says the new policy also misses the point. “Many of us would suggest that the ESA is not only about preserving curiosities and the cabinets necessary for those curiosities, but about preserving the role that native species play within ecosystems,” he wrote in an email from the field, where he’s studying the impact of old-growth versus second-growth forests on fish.

The Obama administration’s new policy states clearly that the Act is “only about preventing the complete extinction of a species, no more,” Nelson says. “I would guess that the citizens of the United States, then and now, might have a very different answer.”

Judith Lewis Mernit is a contributing editor for High Country News. She writes from Southern California and tweets @judlew.

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